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The administration is currently rumored to be considering asserting an interpretation of the 14th amendment to hold that it does not grant citizenship to the US-born children of illegal immigrants. I find it highly unlikely that such an interpretation would stand up to a court challenge, but suppose it did. Further suppose that the administration endeavors to apply this interpretation only to those people who were born after the order took effect.

Now consider two children, A and B, both born of illegal immigrant parents in the US. Child A was born before the order took effect, and the administration counts her as a US citizen, issuing a passport on her parents' application. Child B was born after the order took effect, and her parents' application for her passport is refused.

Does child B have an equal protection (or other) claim here, to compel the State Department to issue a passport?

More generally, would it be possible to assert a change in interpretation that applies only to future births, and if so, how?

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  • The question as asked has an incorrect presupposition, that the president has the power to interpret the Constitution. Only the judicial branch has the power of interpretation. POTUS can command the military, issue pardons etc. and implement (execute) legislation passed by Congress via rule / order. The assumption that POTUS has the power of constitutional interpretation is just not correct, so the question, to make sense, has to mean something other than what was asked.
    – user6726
    Nov 5, 2018 at 21:20
  • @user6726 the president also has the power to interpret laws including the constitution, because it is necessary to interpret a law before one can execute the law. Only if the executive's interpretation is challenged in court can the judiciary reach a question of interpretation. For example, when the executive makes assertions about search and seizure of electronic devices at the border, it is interpreting the 4th amendment.
    – phoog
    Nov 5, 2018 at 23:09

4 Answers 4

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Assuming, for purposes of argument, that such a change could be made by executive order, or indeed by legislation, rather than by amendment, yes, the change could and would have to have an effective date, and apply only to persons born after that date. Indeed that would still be true if such a change were made by constitutional amendment.

Consider, people whose parents (or one of whose parents) are US citizens, but who are born outside of the US, are or may become citizens (by statute), but only if the citizen parent complies with certain rules specifying a minimum period of residence in the US, and other conditions. Those periods and conditions have changed over the years, and each such change had an effective date.

If such a change could be made but could not be made with an effective date, then it would apply retroactively, and deprive people who are already citizens of their citizenship.

There is no valid equal protection claim, because the same rules apply to both individuals, they merely give different results for the different birth dates.

(See my answer to this question for why I do not think such a change would be valid except by Constitutional Amendment.)

EDIT: I suppose such a changed interpretation, if made at all, might take the position that such births never did validly convey citizen ship, and all people whose parents were not validly in the country had never been citizens. That strikes me as even less likely to pass judicial review, but one cannot know what the Supreme Court will do when faced with a truly novel situation.

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  • So, basically, you are saying that date of birth is a constitutionally-valid basis for discrimination?
    – Thomas
    Nov 2, 2018 at 17:51
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    The changes in the conditions for a statutory grant of citizenship are not analogous, because they are actual changes in the law, rather than a change in the interpretation of a law (that is unchanged), in this case the 14th amendment and 8 USC 1401(a).
    – phoog
    Nov 2, 2018 at 17:52
  • @ phoog: The analogy is not perfect, but in both cases there would be a change in the effective rule that was applied, assuming that the change was valid. Or assume that the change was made by statute rather than by executive order (such a bill has been proposed before) and you have a very close analogy. Laws with interpreting regulations frequently have those rules changed with effective dates.
    – David Siegel
    Nov 2, 2018 at 17:58
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    @Thomas: Age is considered a valid distinction in many case: One must be a certain age to drive a car, vote, run for Congress, make a valid contract, and many other things. Otherwise one concludes that by reducto ad absurdam no such change is ever valid
    – David Siegel
    Nov 2, 2018 at 18:14
  • IF the executive order was held to be valid, it could create a rule about evidence of citizenship, for example, accept birth certificates issued before 1 January 2022 as proof of citizenship, but require certain statements on the birth certificate for them to be acceptable proof after that date, such as sworn statements by the parent(s) that he/she/they are citizens.
    – Gerard Ashton
    Nov 2, 2018 at 18:22
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I think the answer depends on the nature of that unlikely future finding regarding the 14th Amendment, and the nature of the legislation that purports to authorize denying a passport. If we imagine a universe where SCOTUS holds that

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

does not refer to children of illegal immigrants, that means that it never referred to such individuals, and no such children ever were citizens. Denying a passport to the child flows automatically from their newly-discovered non-citizen status.

On the other hand, an imaginable legislative way of achieving that outcome is to change passport legislation, specifically denying a passport to a citizen born to illegal immigrants. We would assume that SCOTUS deems that that law does pass strict scrutiny. The new law applies prospectively (no ex post facto law, Art. 1, Sect. 10) to citizens born after the date, when the conditions for getting a passport changed.

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  • The scope of the question, though, is executive action, not legislation. I'm inclined to agree that the answer would depend on the nature of the future finding, but I am confused about the mention of "legislation that purports to authorize denying a passport." There would be no need for such legislation; as your next sentence notes, the denial follows directly from the conclusion that a person is not a US national. Also, how would that play out in light of Aptheker v. Secretary of State, which if I understand correctly required due process to deny passports to US nationals?
    – phoog
    Nov 3, 2018 at 0:28
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With regards to the opinion offered by the Honorable @David Siegel, I dissent.

Established in Marbury v. Madison (1803) A law which defies the Constitution was never a law at all.

To date I am yet to be presented with an example of case law where the Supreme Court (or inferior courts) have clearly defined the meanings of the "subject to the jurisdiction thereof" clause of the 14th Amendment. (If you disagree, please provide reference) Therefor the question of whether or not simply being born within the boundaries of the United States of America constitutes "citizenship" is Constitutionally "Open". The merits of the various arguments for or against are not the topic for OPs inquiry, however, so I shall pass on adding commentary for or against. However, the clear intent of the author would allow us to believe that was not his design.

The question posed is "were the Supreme Court to rule in concurrence with an executive order denying the status of what is being called "birthright citizenship" would it revoke citizenship to those already born. The truth is the effect of that decision would be to say those person, born of illegal immigrants, were never citizens to begin with. Rather than 'taking it away' the Court would, essentially, deny that it ever existed.

This is my opinion of what would happen IF the SCOTUS uphold the Executive Order. I will add my reason for believing this will never actually happen:

  1. I don't believe the executive order will ever actually be issued. With a hoard of 'immigrants' heading for our border, all coming from a part of the world that knows no boundaries on 'executive authority' President Trump [probably] believes that the threat of such an order may well dissuade many from coming (along with announcing changes in asylum rules, etc.)
  2. If you actually read the Roberts decision in the Sebelius case what it really comes down to is "Congress, you made this mess, you clean it up". Since Congress has, in fact, passed many laws which assume the "Birthright Citizenship" interpretation of the 14th Amendment, the Court is going to be more inclined (IMHO) to send this back to Congress. The Court will likely craft a decision that says "Either interpretation is Constitutional, but Congress has locked themselves in to 'Birthright Citizenship' and now they have to fix it."

I do not believe we will find ourselves faced with reality of dealing with millions of people who, at the waving of a pen, suddenly loose their citizenship. Rather, If we go the legislative way (per Lindsay Graham) once it goes through the sausage grinder in DC we will get legislation that allows for a smooth transition to ending birthright citizenship (we are, after all, one of about 30 countries that offer that, it IS NOT 'normal')

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    The matter seems to me to be covered in Wong Kim Ark (169 U.S. 649) at p703 "no act or omission of Congress,... can affect citizenship acquired as a birthright, by virtue of the Constitution itself, ... The Fourteenth Amendment, ..., has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship." Many other phrases to the same effect from this opinion could be quoted, and it discusses the meaning of that clause at great length.
    – David Siegel
    Nov 2, 2018 at 23:25
  • Wong clearly does not apply to matters of illegal immigration. Wong's parents entered the US in compliance with the laws at the time and gave birth to Wong Kim Ark after passage of the 14th (and prior to the Chinese Exc. Act) Wong Kim Ark's comings and goings were fully legal as a citizen of the US. The present question is whether or not the legal status of the parents affect the citizenship status of the children. While I do not believe the SCOTUS is likely alter, writ large, the citizenship status of the millions, it will not rest on Wong but rather the acts of Congress since the 14th
    – Cos Callis
    Nov 3, 2018 at 1:59
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    I must disagree. While it isw true that Won'gs parents entered the US legally, none of the reasoning in the case in any way relies on that fact. The opnion goes to great lengths to equate the meaning of "subject to the jurisdiction" with "within the jurisdiction" elsewhere in the 14th. If that still holds Plyler v. Doe which is based on that other clause, holds that the 14th fully applies to the children of those here illegally. The court could change all this of course. It would be a huge change. The 14th is self-executing, so laws are not needed.
    – David Siegel
    Nov 3, 2018 at 15:28
  • PLEASE- can anyone point to that section of the 14th Amendment to refers to the status of the parents of the person born in the US???
    – BobE
    Nov 4, 2018 at 2:34
  • Note: If SCOTUS changes its opinion on what the Citizenship Clause means, then INA 301(a)(1) (8 USC §1401(a)) remains constitutional thanks to the Naturalization Clause. Thus, the affected individuals would be able to bring a separate case alleging that they are citizens by force of statute, which would be decided based on what Congress meant in 1952, not what Congress meant in 1868.
    – Brian
    Nov 4, 2018 at 4:12
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I think it's up to the Supreme Court to decide what the remedy is, were it to make such a decision. Some court decisions on citizenship are retroactive, and some are not, but I think there is reason to believe in this hypothetical case, they would not apply it retroactively.

In the case of cases regarding loss of citizenship, I believe that decisions have been retroactive. In Afroyim v. Rusk (1967), the Supreme Court decided that it was unconstitutional under the 14th Amendment for someone born or naturalized in the US to lose US citizenship unless they intended to relinquish US citizenship (or unless they obtained naturalization unlawfully, which arguably is not loss of citizenship since they never validly had it). 7 FAM 1240 Appendix B (c) says that the decision was "retroactive in effect", i.e. anyone who was told they lost citizenship in the years before the decision (presumably all the way back to the enactment of the 14th Amendment in 1868) according to the statute at that time, would be considered to have not lost it if they did not intend to relinquish it. Here the retroactive application of the decision preserves people's citizenship -- it nullifies the loss of citizenship.

However, there is a recent Supreme Court case on citizenship at birth, where the Supreme Court did not apply the decision retroactively. In Sessions v. Morales-Santana (2017), the Supreme Court ruled that the provision which specified a different physical presence requirement for children born abroad out of wedlock to American mothers (1 continuous year of physical presence in the US), as opposed to the physical presence requirement for children born abroad in wedlock to 1 US citizen parent and 1 alien parent, or for children born abroad out of wedlock to American fathers (5 cumulative years of physical presence, including 2 years after turning 14) was unconstitutional. As a remedy, the Supreme Court decided that, "prospectively", the 5 cumulative years standard would be applied to children born out of wedlock to American mothers also. But it did not retroactively apply the 5 cumulative years standard to children born out of wedlock to American mothers before the date of the decision -- in other words, the Supreme Court decided to continue applying a section of law that it decided to be unconstitutional, to children born before the date of the decision.

The Supreme Court decision did not say why the remedy was not retroactive in effect. In my opinion, it is probably because it is generally considered unfair and harmful to retroactively take away citizenship from people, which they thought they had based on the best interpretation of the rules at the time; on the other hand, retroactively granting or restoring citizenship is considered much more acceptable, as it is extending a benefit retroactively. In the case of the children born out of wedlock to American mothers, retroactively changing it to the 5 cumulative years condition would take away far more people's citizenship than it would grant (it is much more likely to meet the 1 continuous year requirement than to meet the 5 cumulative years requirement). This would also be consistent with how, historically, statutory changes to acquisition of citizenship for children born abroad have generally not been retroactive (see 8 FAM 301.4-1(A)(2)); and in the rare cases there have explicitly been retroactive changes, it has always been to grant more citizenship, not take it away.

Although a hypothetical decision where birthright citizenship was limited wouldn't completely parallel the Sessions v. Morales-Santana decision (in Sessions v. Morales-Santana, there was no dispute about the interpretation of the statute; rather, the statute was determined to be unconstitutional; in a hypothetical decision where birthright citizenship was limited, the statute would not be unconstitutional; rather, they would have to decide that both the statute and constitution, which both grant birthright citizenship, have been interpreted incorrectly), the reasons I have mentioned above point to it not being applied retroactively. Retroactively applying such a limitation would take away citizenship to lots of people, who believed they had it based on what almost everyone believed was the correct rule at the time.

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